Nigeria’s Suspension Of Twitter And The AGF’s Move To Prosecute Offenders – Few Legal Matters Arising.

By Olumide Babalola

On the 4th day of June 2021, the Federal Government of Nigeria,
through the Federal Ministry of Information & Culture issued a
press release informing the entire world, ironically on Twitter,
that, the operations of the global microblogging social networking
site have been suspended in Nigeria. To put this far-reaching
decision in proper perspective, the ministry, in a series of
tweets, stated that:

“FG suspends @Twitter operations in Nigeria. The Federal
Government has suspended, indefinitely, the operations of the
microblogging and social networking service, Twitter in
Nigeria.”

Barely 6 hours after the tweets, Nigerians’ access to twitter
was systematically and gradually limited or completely blocked and
thereby necessitated their resort to Virtual Private Networks (VPN)
to access the all-important app/site.

In another frenetic move to ensure Nigerians do not have access
to Twitter, the office of the Attorney General of the Federation
was reported to have instructed the Director of Public Prosecutions
to commence the prosecution of “violators of the Federal Government
De-activation of operations of Twitter in Nigeria”

Upon this directive, many newspapers have reported that the
purpose is to prosecute users who access twitter though VPN in
spite of its suspension in Nigeria. However, this article seeks to
briefly highlight some of the many legal issues that have arisen
from the most reported events in the past 24 hours in Nigeria,
especially among its young citizens.

1. What does it mean to ‘operate’ in
Nigeria?
It is beyond doubt that, from the Ministry of Information’s tweets,
what was been suspended in Nigeria are the “operations of Twitter.”
Now, what does the term ‘operation’ mean under the Nigerian law? At
page 275 of Babalola’s Law Dictionary (2nd edn. Noetico Repertum,
Lagos, 2019), the word was defined by the Court of Appeal in Osondu
v Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682) 470 at 483
as:
“(1) Exertion of power; (2) the process of operating or mode of
action; (3) an effect brought about in accordance with a definite
plan; (4) action; and (5) activity”

From any of the definitions above, what the FG has simply done
was to suspend the “activities” of Twitter in Nigeria and nothing
more. It is not beyond doubt that, for business or establishment
purposes, to my knowledge, Twitter neither operates an office nor
does business in Nigeria within the context of its suspension by
the FG.
Hence, the suspension of its operations is rather a matter for the
companies that grant access to the site than for Twitter itself
since the FG is aware that the company’s physical office in Africa
is located in Ghana. Secondly, Twitter, a company, does not have
‘activities’ in Nigeria within the context of its business
operations.
However, a discussion of the propriety of such knee jerk approach
by the FG to the company’s deletion of Nigeria’s President’s
controversial tweet, is another issue that is not the crux of this
intervention.

2. Nigerian Communications Commission’s powers to
suspend Twitter
From a press release by the Association of Licences
Telecommunications Operators of Nigeria (ALTCON) dated 5 June 2021,
the public was informed of the NCC’s shut down directive but the
statement simply alludes to the Commission’s regulatory powers
under the NCA 2003.

It must be quickly stated that, no regulator’s power to give
directives is at large. Such directives must be given under
specific provision(s) of the relevant enabling law. It is trite law
that, an agency’s power to give directives is a delegated power
which must be clearly and specifically donated by its enabling law.
(See NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt 1328) 148; FGN v.
Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162; Ogunlaji v. A.G
Rivers State (1997) 6 NWLR (Pt. 508) 209; UNTHMB v. Nnoli (1994) 5
NWLR (Pt. 36) 376)

I am aware of the NCC’s Internet Code of Practice which empowers
the Commission to instruct Internet Service Providers (ISPs) to
block access to certain offensive sites. For the avoidance of
doubt, clause 7.5 of the Code expressly provides that:
“Upon determination by the Commission that the content reported
under Paragraph 7 (2) above is indeed unlawful, the Commission
shall issue a takedown notice to all IASPs to deny or disable
access to the content. The IASP shall be expected to comply with
such takedown notice within 24 hours of receipt of the notice.”

It is interesting to note that, in 2019, I filed a suit at the
Federal High Court, Abuja against the NCC challenging the
likelihood of this provision to be used to violate fundamental
rights of Nigerians pursuant to sections 39 and 46 of the 1999
Constitution but the court dismissed our case as premature and
speculative in spite of the instructive wording of section 46 that
empowers an applicant to file a suit even when any of his
fundamental rights is ‘likely’ to be interfered with.

I saw this (the arbitrary shutdown of anti-government websites)
coming and we approached the court but his lordship saw otherwise
in Digital Rights Lawyers Initiative v NCC, Suit No.
FHC/ABJ/CS/56/2019 (Judgment delivered in 2020) Assuming the NCC
even wielded the big stick under clause 7.5, the exercise of such
powers is clearly circumscribed by certain conditions which must be
satisfied as condition precedent before a takedown notice can be
issued. Secondly, under the clause, it is the offensive contents
that are meant to be attacked but not the entire platform as done
in this case.

3. The AGF’s imminent prosecution of
‘offenders’
The AGF, as the chief law officer, has simply directed the DPP to
prosecute violators of the ‘de-activation’ directive. To my mind, I
respectfully opine that, the very simple question that answers any
speculation(s) that may arise here is – who are/were the recipients
of the directive. The users or the ISPs? I think the answer is as
clear as it could get.

Without necessarily deviating into any argument as to whether
the FG has criminalised the use of Twitter (which would be a very
preposterous thing to even imagine) and since users were never
directed to de-activate their Twitter accounts or never to access
Twitter, they are not under any legal obligation to ‘de-activate’
or suspend twitter unlike the ISPs who are duty bound to comply
with the regulator’s directives except they are ready to ‘risk it
all.’

4. Interference with freedom of expression of millions
of Nigerians
CNN reported that about 39 million Nigerians have twitter accounts
which mean different things to different people e.g market place,
social networking, means of communication, information site
etc.

By the suspension, the FG has clearly interfered (whether
rightly or wrongly) with citizens’ medium of expression and
reception of information in a dangerous affront to section 39 of
the 1999 Constitution. I understand a number of organisations are
planning to approach the courts once the JUSUN strike is over to
challenge the suspension and that is the reason I will pause
here.

Conclusively, there are many more legal issues that have arisen
and will continue to arise from the FG’s suspension of Twitter in
Nigeria. However, considering the value that Nigerians daily derive
from the site which, in my modest opinion outweighs political
sentiments to the contrary, it is advisable for the FG to rethink
its decision. Thankfully, it is a suspension but not an outright
ban.

By Olumide Babalola

On the 4th day of June 2021, the Federal Government of Nigeria,
through the Federal Ministry of Information & Culture issued a
press release informing the entire world, ironically on Twitter,
that, the operations of the global microblogging social networking
site have been suspended in Nigeria. To put this far-reaching
decision in proper perspective, the ministry, in a series of
tweets, stated that:

“FG suspends @Twitter operations in Nigeria. The Federal
Government has suspended, indefinitely, the operations of the
microblogging and social networking service, Twitter in
Nigeria.”

Barely 6 hours after the tweets, Nigerians’ access to twitter
was systematically and gradually limited or completely blocked and
thereby necessitated their resort to Virtual Private Networks (VPN)
to access the all-important app/site.

In another frenetic move to ensure Nigerians do not have access
to Twitter, the office of the Attorney General of the Federation
was reported to have instructed the Director of Public Prosecutions
to commence the prosecution of “violators of the Federal Government
De-activation of operations of Twitter in Nigeria”

Upon this directive, many newspapers have reported that the
purpose is to prosecute users who access twitter though VPN in
spite of its suspension in Nigeria. However, this article seeks to
briefly highlight some of the many legal issues that have arisen
from the most reported events in the past 24 hours in Nigeria,
especially among its young citizens.

1. What does it mean to ‘operate’ in
Nigeria?
It is beyond doubt that, from the Ministry of Information’s tweets,
what was been suspended in Nigeria are the “operations of Twitter.”
Now, what does the term ‘operation’ mean under the Nigerian law? At
page 275 of Babalola’s Law Dictionary (2nd edn. Noetico Repertum,
Lagos, 2019), the word was defined by the Court of Appeal in Osondu
v Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682) 470 at 483
as:
“(1) Exertion of power; (2) the process of operating or mode of
action; (3) an effect brought about in accordance with a definite
plan; (4) action; and (5) activity”

From any of the definitions above, what the FG has simply done
was to suspend the “activities” of Twitter in Nigeria and nothing
more. It is not beyond doubt that, for business or establishment
purposes, to my knowledge, Twitter neither operates an office nor
does business in Nigeria within the context of its suspension by
the FG.
Hence, the suspension of its operations is rather a matter for the
companies that grant access to the site than for Twitter itself
since the FG is aware that the company’s physical office in Africa
is located in Ghana. Secondly, Twitter, a company, does not have
‘activities’ in Nigeria within the context of its business
operations.
However, a discussion of the propriety of such knee jerk approach
by the FG to the company’s deletion of Nigeria’s President’s
controversial tweet, is another issue that is not the crux of this
intervention.

2. Nigerian Communications Commission’s powers to
suspend Twitter
From a press release by the Association of Licences
Telecommunications Operators of Nigeria (ALTCON) dated 5 June 2021,
the public was informed of the NCC’s shut down directive but the
statement simply alludes to the Commission’s regulatory powers
under the NCA 2003.

It must be quickly stated that, no regulator’s power to give
directives is at large. Such directives must be given under
specific provision(s) of the relevant enabling law. It is trite law
that, an agency’s power to give directives is a delegated power
which must be clearly and specifically donated by its enabling law.
(See NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt 1328) 148; FGN v.
Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162; Ogunlaji v. A.G
Rivers State (1997) 6 NWLR (Pt. 508) 209; UNTHMB v. Nnoli (1994) 5
NWLR (Pt. 36) 376)

I am aware of the NCC’s Internet Code of Practice which empowers
the Commission to instruct Internet Service Providers (ISPs) to
block access to certain offensive sites. For the avoidance of
doubt, clause 7.5 of the Code expressly provides that:
“Upon determination by the Commission that the content reported
under Paragraph 7 (2) above is indeed unlawful, the Commission
shall issue a takedown notice to all IASPs to deny or disable
access to the content. The IASP shall be expected to comply with
such takedown notice within 24 hours of receipt of the notice.”

It is interesting to note that, in 2019, I filed a suit at the
Federal High Court, Abuja against the NCC challenging the
likelihood of this provision to be used to violate fundamental
rights of Nigerians pursuant to sections 39 and 46 of the 1999
Constitution but the court dismissed our case as premature and
speculative in spite of the instructive wording of section 46 that
empowers an applicant to file a suit even when any of his
fundamental rights is ‘likely’ to be interfered with.

I saw this (the arbitrary shutdown of anti-government websites)
coming and we approached the court but his lordship saw otherwise
in Digital Rights Lawyers Initiative v NCC, Suit No.
FHC/ABJ/CS/56/2019 (Judgment delivered in 2020) Assuming the NCC
even wielded the big stick under clause 7.5, the exercise of such
powers is clearly circumscribed by certain conditions which must be
satisfied as condition precedent before a takedown notice can be
issued. Secondly, under the clause, it is the offensive contents
that are meant to be attacked but not the entire platform as done
in this case.

3. The AGF’s imminent prosecution of
‘offenders’
The AGF, as the chief law officer, has simply directed the DPP to
prosecute violators of the ‘de-activation’ directive. To my mind, I
respectfully opine that, the very simple question that answers any
speculation(s) that may arise here is – who are/were the recipients
of the directive. The users or the ISPs? I think the answer is as
clear as it could get.

Without necessarily deviating into any argument as to whether
the FG has criminalised the use of Twitter (which would be a very
preposterous thing to even imagine) and since users were never
directed to de-activate their Twitter accounts or never to access
Twitter, they are not under any legal obligation to ‘de-activate’
or suspend twitter unlike the ISPs who are duty bound to comply
with the regulator’s directives except they are ready to ‘risk it
all.’

4. Interference with freedom of expression of millions
of Nigerians
CNN reported that about 39 million Nigerians have twitter accounts
which mean different things to different people e.g market place,
social networking, means of communication, information site
etc.

By the suspension, the FG has clearly interfered (whether
rightly or wrongly) with citizens’ medium of expression and
reception of information in a dangerous affront to section 39 of
the 1999 Constitution. I understand a number of organisations are
planning to approach the courts once the JUSUN strike is over to
challenge the suspension and that is the reason I will pause
here.

Conclusively, there are many more legal issues that have arisen
and will continue to arise from the FG’s suspension of Twitter in
Nigeria. However, considering the value that Nigerians daily derive
from the site which, in my modest opinion outweighs political
sentiments to the contrary, it is advisable for the FG to rethink
its decision. Thankfully, it is a suspension but not an outright
ban.